and Submitted March 16, 2018 San Francisco, California
from the United States District Court for the Eastern
District of California Garland E. Burrell, Jr., Senior
District Judge, Presiding D.C. No. 2:13-cr-00300-GEB-2,
Riordan (argued) and Ann C. McClintock, Assistant Federal
Defenders; Heather E. Williams, Federal Defender; Office of
the Federal Public Defender, Sacramento, California, for
Defendant-Appellant Russell Eugene Gilmore.
Gillies (argued), Woodland, California, for
Defendant-Appellant Richard David Hemsley.
Gregory T. Broderick (argued) and Samuel Wong, Assistant
United States Attorneys; Camil A. Skipper, Appellate Chief;
United States Attorney's Office, Sacramento, California;
Before: Richard A. Paez and Sandra S. Ikuta, Circuit Judges,
and Lynn S. Adelman, [*] District Judge.
panel affirmed the district court's denial of a motion to
enjoin the government's prosecution of two defendants
charged with conspiracy to manufacture marijuana plants and
manufacture of marijuana plants.
panel held that a congressional prohibition on the Department
of Justice's use of appropriated funds to prevent states
from implementing state laws that authorize the use,
distribution, possession, or cultivation of medical marijuana
does not limit the government's ability to enforce
federal drug laws on federal land.
ADELMAN, District Judge:
has barred the Department of Justice from using appropriated
funds "to prevent [certain States, including California]
from implementing their own State laws that authorize the
use, distribution, possession, or cultivation of medical
marijuana." See Consolidated and Further
Continuing Appropriations Act, 2015, Pub. L. No. 113-235,
§ 538, 128 Stat. 2130, 2217 (2014) (hereafter
"§ 538"); Consolidated Appropriations Act,
2018, § 538 (2018) (extending § 538 through
September 30, 2018). In United States v. McIntosh,
833 F.3d 1163, 1177 (9th Cir. 2016), we held that defendants
may seek to enjoin the expenditure of such funds on federal
drug trafficking prosecutions of individuals who engaged in
conduct authorized by state medical marijuana laws and who
fully complied with such laws.
case, the district court refused to issue an injunction
because the subject marijuana grow operation occurred on
federal land under the control of the Bureau of Land
Management ("BLM"). We affirm. The restrictions
imposed by ...